Dy.Commissioner of Income Tax Circle-5(3), Ahmedabad V. Shri Nitinkumar Karsandas Patel, Ahmedabad

ITA 907/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6048 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Revised return

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NO. 907/AHD/2016 / ASSESSMENT YEAR: 2009-13 DCIT, CIR.5(3) AHMEDABAD. VS SHRI NITINKUMAR KARSANDAS PATEL 44, NAVYUG COLONY GITA MANDIR ROAD AHMEDABAD 380 022. PAN : ACRPP 5032 E / (APPELLANT) / (RESPONDENT) REVENUE BY : MS.MEENAKSHI DOHARE, SR.DR ASSESSEE BY : SHRI S.N. DIVETIA, AR / DATE OF HEARING : 14/02/2018 /DATE OF PRONOUNCEMENT : 15/02/2018 PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-5, AHMEDABAD DATED 4.1.2016 PASSED IN THE ASSTT.YEAR 2009- 10. 2. THOUGH REVENUE HAS TAKEN FIVE GROUNDS OF APPEAL, BUT ITS GRIEVANCES REVOLVES AROUND A SINGLE ISSUE VIZ. THE LD.CIT(A) HAS ERRED IN DETERMINING ADDITIONAL CLAIM MADE BY THE ASSESSEE W ITH REGARD TO LONG TERM CAPITAL GAIN AND RELEGATED TO THE AO FOR EXAMI NATION AND ADJUDICATION. ITA NO.907 /AHD/2016 - 2 - 3. IT EMERGES OUT FROM THE RECORD THAT ORIGINALLY T HE ASSESSEE HAS DECLARED SHORT TERM CAPITAL OF RS.89,21,997/- ON SA LE OF SHARES. THEREAFTER, HE HAS REVISED RETURN AND SHOWN SHORT T ERM CAPITAL GAIN IN THE ORIGINAL RETURN OF INCOME AS LONG TERM CAPITAL GAIN. THE LD.CIT(A) HAS RELEGATED THIS ISSUE TO THE FILE OF THE AO FOR VERIFICATION WHILE GIVING EFFECT TO THE CIT(A)S ORDER. THE LD.AO FOUND THE CLAIM OF THE ASSESSEE ACCEPTABLE. HE PASSED THE FOLLOWING ORDER: ORDER GIVING EFFECT TO THE ORDER OF CIT(A)-5. AHMEDABAD IN VIEW OF THE LD. CIT(A) AHMEDABAD-5, AHMEDABAD'S ORDER NO. CIT(A)- 5/ITO. WD.11 (4)/247/2014-15 DATED 04/01/2016, SINC E THE CIT(A) HAS DIRECTED TO ADMIT THE ADDITIONAL CLAIM MADE BY THE ASSESSEE REGARDING THE LONG TERM CAPITAL GAIN DURING THE COURSE OF ASSESSM ENT PROCEEDINGS AND ALSO DIRECTED TO EXAMINE THE ISSUE OF LTCG CLAIMED BY TH E ASSESSES SINCE THE ISSUE HAS NOT BEEN EXAMINED DURING THE COURSE OF AS SESSMENT PROCEEDINGS. 2. THE ISSUE REGARDING LTCG HAS BEEN VERIFIED AND CONTENTION OF THE ASSESSEE IS ACCEPTABLE, TOTAL INCOME OF THE ASSESSE E IS RECOMPUTED AS UNDER:- INCOME AS PER ORDER U/S 1 43(3) OF THE ACT DATED 31 .03.2011 RS. 1 ,06,97,040/- LESS: RELIEF/REDUCTION ALLOWED BY THE CIT(A); SHORT TERM CAPITAL GAIN SHOWN IN ORIGINAL RETURN OF INCOME OF RS. 98,66,862/- IN RESPECT OF GANESH HOUS ING FINANCE LTD WHICH IS TREATED AS LTCG U/S 10(38) OF THE ACT RS. 98,66,862/- ADD: SHORT TERM CAPITAL LOSS OF RS. (-) 9,44,841 /- SET OFF AGAINST STCG SHOWN IN ORIGINAL ROI IN RESPE CT OF GANESH HOUSING FINANCE LTD. RS. 9,44,865/- REVISED TOTAL INCOME RS. 17,50,043/- SAY RS. 17,50,040 ASSESSED U/S.250 OF THE ACT. GIVE CREDIT FOR ALL TH E TAXES PAID. ISSUE REVISED DEMAND NOTICE & CHALLAN / REFUND ORDER, AS THE CASE MAY BE. SD/- (SHAKTI SINGH) ASST.COMMISSIONER OF INCOME-TAX CIR.5(3) AHMEDABAD 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. SINCE THE AO HAS ACC EPTED THE STAND OF THE ITA NO.907 /AHD/2016 - 3 - ASSESSEE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE CIT(A). THE LD.CIT(A) HAS RELEGATED THIS ISSUE FOR RE-VERIFICAT ION OF THE CLAIM IN THE INTEREST OF JUSTICE. CONSIDERING SUBSEQUENT ORDER OF THE AO PASSED WHILE GIVING EFFECT TO THE LD.CIT(A)S ORDER, THIS APPEAL IS DEVOID OF MERIT. ACCORDINGLY IT IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON 15 TH FEB., 2018. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 15/02/2018